Arias, Salvador v. State ( 2006 )

Dismissed and Memorandum Opinion filed July 27, 2006

Dismissed and Memorandum Opinion filed July 27, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-04-00972-CR

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SALVADOR ARIAS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 230th District Court

Harris County, Texas

Trial Court Cause No. 749,048

M E M O R A N D U M   O P I N I O N

Salvador Arias appeals the revocation of his post-conviction community supervision^[1] on the grounds that: (1) the trial court erred in refusing to consider and grant his application for writ of habeas corpus; and (2) his conviction is void due to a lack of evidence.  We dismiss for lack of jurisdiction.

Ordinarily, a defendant placed on post-conviction community supervision may raise issues relating to the conviction only in an appeal taken when community supervision is originally imposed.  See Nix v. State, 65 S.W.3d 664, 667 (Tex. Crim. App. 2001). Here,  appellant argues that he falls into the following exceptions to this rule: (1) the habeas corpus exception because he was denied effective assistance of counsel when his trial attorney failed to investigate the facts and review the applicable law before instructing him to enter the guilty plea; and (2) the void judgment exception because there is no evidence to support his conviction for forgery of a government instrument.

The habeas corpus exception has been expressly abandoned by the Texas Court of Criminal Appeals.  See Jordan v. State, 54 S.W.3d 783, 786 (Tex. Crim. App. 2001).  A probationer may now seek that relief only by following the proper procedures to file a writ of habeas corpus application.^[2]  See id.  Because nothing in our record reflects that appellant followed these procedures, his first issue presents nothing for our review and is overruled.

The void judgment exception recognizes that there are rare situations in which a judgment can be attacked at any time due to a complete lack of power by the trial court to render it.  Nix, 65 S.W.3d at 667.  As relevant here, a judgment of conviction for a crime is void where the record reflects that there is no evidence to support the conviction.  Id. at 668.  However, to satisfy this requirement, there must be a complete lack of evidence, rather than merely insufficient evidence, and a guilty plea constitutes some evidence for this purpose.  Id. n.14.

Appellant argues that the allegations in his charging instrument, even if true, show that he only possessed a forged social security card, which is a Class A misdemeanor.  See Tex. Penal Code Ann. ' 37.10(c)(1) (Vernon 2003).  On the contrary, however, appellant was charged with the felony offense of forgery under section 32.21(a)(1)(C) and (e)(2), and he admitted the allegations of that offense in writing in his guilty plea document.  See id. ' 32.21(a)(1)(C).  Therefore, appellant=s second issue fails to establish the void judgment exception. Accordingly, we are without jurisdiction over appellant=s appeal and dismiss it.

/s/        Richard H. Edelman

Justice

Judgment rendered and Memorandum Opinion filed July 27, 2006.

Panel consists of Justices Fowler, Edelman, and Guzman.

Do not publish C Tex. R. App. P. 47.2(b).

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^[1]           Appellant pleaded guilty and was convicted of forgery of a government document.

^[2]           This court would have jurisdiction over an appeal of the denial of a habeas corpus application seeking relief from a judgment ordering community supervision, but not over a habeas corpus application seeking relief from any other final conviction in a felony case, such as a judgment revoking community supervision, because such an application may be filed only in the Court of Criminal Appeals.  Compare Tex. Code Crim. Proc. Ann. art. 11.072 ' 8 (Vernon 2005) with id. art. 11.07 ' 3; see also Tex. R. App. P. 31.  Conversely, if, as appellant complains, the trial court declined to rule on a properly filed habeas application, as article 11.072 requires, appellant could have filed a petition for a writ of mandamus in this court, requesting that the trial judge be ordered to rule on his application; however, he has no right to appeal such a failure to rule. See  Tex. Code Crim. Proc. Ann. art. 11.072 ' 6(a) (2005) (AThe trial court shall enter a written order granting or denying the relief sought in the application.@);  Ex parte Noe, 646 S.W.2d 230, 231 (Tex. Crim. App. 1983); Ex parte Cozzi, 138 S.W.3d 454, 455 (Tex. App.CFort Worth 2004, pet. ref=d).